Excerpt: - .....as to whether the rent for july and august, 1949 had been paid. on the evidence on record the learned munsif of the trial court found that the defendant did not pay rent for july and august, 1949. the next controversy was whether the defendant was hit by the proviso to section 14(3) of the west bengal premises rent control act, 1950. at the time of the argument the learned advocate for the defendant frankly conceded that the defendant did not deposit rent for september 1951 and subsequent months although by order no. 21 dated 21.9.51 he was directed to deposit rent by the 15th day of the next following month. the learned munsif decided the controversy against the defendant. the relevant portion from his judgment is quoted below:'so, in view of section 14(4) west bengal premises rent.....

Judgment:

A.C. Sen, J.

1. The present appeal under Clause 15 of the Letters Patent arises out of a suit for eviction instituted by the plaintiff, appellant against the defendant respondent. The suit was filed on 10th March, 1950 during the continuance of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948. The plaintiff asked for eviction on the ground that the defendant's interest in the disputed premises had been ipso facto determined under Sub-section (3) of Section 12 of the said Rent Act of 1948. The Rent Control Act of 1950, that is to say, the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 came into force during the pendency of the suit.

2. The plaintiff not only claimed recovery of possession; he also claimed rent at the rate of Rs. 12/- per month from July to September 1949 and mesne profits at that rate from October 1949.

3. The only point in controversy at the trial was whether the defendant paid rent for July and August 1949. Admittedly the defendant did not pay or deposit any rent for September, 1949 and subsequent months till 2nd November, 1951 when the defendant deposited arrears of rent at the rate of Rs. 12/- per month from September 1949 to August 1951 as per order No. 21 dated 21.9.51 passed on the plaintiff's application under Section 14(4) of the West Bengal Premises Rent Control Act of 1950. That order was passed without prejudice to the contention of the parties as to whether the rent for July and August, 1949 had been paid. On the evidence on record the learned Munsif of the trial court found that the defendant did not pay rent for July and August, 1949. The next controversy was whether the defendant was hit by the proviso to Section 14(3) of the West Bengal Premises Rent Control Act, 1950. At the time of the argument the learned Advocate for the defendant frankly conceded that the defendant did not deposit rent for September 1951 and subsequent months although by Order No. 21 dated 21.9.51 he was directed to deposit rent by the 15th day of the next following month. The learned Munsif decided the controversy against the defendant. The relevant portion from his judgment is quoted below:

'So, in view of Section 14(4) West Bengal Premises Rent Control Act defence against ejectment is deemed to have been struck out. In any view. I find that the defendant is not entitled to protection against eviction and is hit by the proviso to Section 14(3) West Bengal Premises Rent Control Act and the plaintiff is entitled to get khas possession of the property in suit.'

4. Issue No. 2 in the suit was as follows;

'Was any notice to quit served upon the defendant? Is the notice legal, valid and sufficient?'

The finding of the learned Munsif on this issue was as follows:

'This issue was not pressed at the time of trial. As the plaintiff claims ejectment on the ground of ipso facto determination of tenancy under Section 12(3) West Bengal Premises Rent Control Act, 1948 and in view of the case reported in : AIR1951Cal539 , no ejectment notice is necessary.'

5. The final order passed by the learned Munsif on 31st March, 1952 was to the following effect:

'Ordered that the suit be decreed on contest with cost. The defendant do vacate the property in suit within one month from date. .....

The plaintiff do get from the defendant rent at the rate of Rs. 12/- per month for July and August, 1949. The plaintiff will be entitled to get mesne profits at the rate of Rs. 12/- per month from September 1951 till he gets khas possession of the property. ... . . .on paymentof proper court fees. ....

6. The defendant preferred an appeal against the decision of the learned Munsif and the appeal was heard by Sri S. Sen Gupta, Subordinate Judge and it was registered as Title Appeal No. 132 of 1952 of the 2nd Additional Court of the Subordinate Judge, Howrah. The only point for determination before Sri Sen Gupta was whether the defendant was entitled to protection under Section 14(1) of the West Bengal Premises Tenancy Act, 1950. The defendant relied on S.B. Trading Co. Ltd. v. Shyamlal, : AIR1951Cal539 and T.S.R. Sarma v. Nagendra Bala Debi, : AIR1952Cal879 (FB), in support of his argument before Sri S. Sen Gupta that the learned Munsif was bound tofive him relief under Section 14(1) of the West Bengal Premises Rent Control Act of 1950. Sri S. Sen Gupta accepted the argument and observed as follows:

'It is now settled law in view of the decision of the Hon'ble High Court cited above that in case of suits pending when the West Bengal Premises Rent Control Act of 1950 came into operation on 31.3.1950, the tenant is entitled to get special protection under Section 14 of the Act so far as the section provides for protection against eviction. So it follows that the learned Munsif should not have passed any order under Section 14(4) of the Act of 1950 as the sub-section contains nothing which can afford any protection to the tenant against eviction. For the same reason Section 14(3) of the Bengal Premises Rent Control Act, 1950 referred to by the learned Munsif must also be considered inapplicable to the present case. In the next place, it is a case in which there could be no order for ejectment but for the default of the tenant in the matter of payment of rent and so it follows that this tenant defendant is entitled to get protection under Section 14(1) of the Act of 1950. Had the decisions referred to been reported before the case had been tried, the learned Munsif's decisionwould no doubt have been different. Hence the appeal succeeds.'

Sri Sen Gupta passed on 25th May, 1953 the following order:

'Ordered that the appeal is allowed on contest. The judgment and decree of the learned trial court is set aside. The case is sent down to the lower court on remand for passing necessary orders under Section 14(1) of the West Bengal Premises Rent Control Act of 1950 and disposing of the suit in accordance with law.'

7. On remand the suit was heard by Sri I.N. Mallick, Munsif, Third Court, Howrah. Sri Mallick thought that the direction given by the remand order dated 25.5.53 could not be considered apart from the direction to dispose of the suit according to law. His reasoning was as follows:

'If the learned Appellate Court itself called for the deposit and afforded protection against eviction, there would have been a clear order on the point. If the learned Appellate Court wanted the lower court to call for the deposit and to dismiss the prayer for eviction on deposit, there would have been a specific direction on the point. The suit has been sent back on remand to be disposed of according to law and it has to be ascertained what the effect of the decision in : AIR1953Cal733 (FB) is on this case.'

8. In spite of the finding of the appellate court remanding the case that Section 14(3) of the Act of 1950 was inapplicable, Sri Mallick, the learned Munsif applied the proviso to Section 14(3) to see if the defendant was entitled to protection against eviction. This he did because he thought that he was asked to decide the suit in accordance with law. It seems that the case of Ajit Kumar reported in : AIR1953Cal733 (FB) was not available to the learned Subordinate Judge at the time of the passing of the remand order on 25-5-1953, Sri Mallick therefore thought that the case was to be decided according to the principle laid down in that case. He observed as follows:

'Under the law as laid down in : AIR1953Cal733 (FB) to consider whether Section 14(3) Proviso applies to the tenant in this case it Has to be seen if there have accrued the disqualifying arrears since the passing of the Amending Act of 1950. The defence under Section 14(4) of the Act may not be struck off but the tenant in view of the defaults since November 1950 after the passing of the Amending Act, is not entitled to protection against eviction ... . Here the defendant not being entitled to protection against eviction would not benefit against the prayer for eviction even if he makes a deposit under Section 14(1) of the Act.'

The learned Munsif, however, calculated the amount to be deposited under Section 14(1) because he thought that under the orders of the learned Appellate Court the defendant was entitled to the relief under Section 14(1) of the Act. even if it was found that Section 14(3) Proviso would not protect him against eviction. Further, he thought that apart from eviction, the defendant might be deemed to have some benefit under Section 14(1) of the Act because of the time he gotin depositing the arrears, and because this might have some effect on the claim for arrears and mesne profits. The learned Munsif concluded this part of the judgment as follows:

'I hold therefore that an order under Section 14(1) of the Act as directed by the learned Appellate Court should be passed, though if must be made clear to the defendant that under the law he is not entitled to protection against eviction, even if he made the deposit.'

9. The suit was ultimately decreed on 30.11.53 by the learned Munsif on contest with costs against the defendant. He also passed the following order regarding deposit under Section 14 (1) of the Act:

'The defendant may deposit under Section 14(1) of West Bengal Premises Rent Control Act Rs. 391/9/3P, though he shall not get any relief against eviction on depositing, by 15.12.53 The plaintiff shall get Rs. 24/- for July and August 1949 and can withdraw the amount of Rs. 288/- deposited by the defendant in this suit and shall further get Rs 84/- as mesne profits from September 1951 till March 1952 and shall get further mesne profits at the same rate till he gets khas possession on payment of requisite court fees on the amount.

10. The defendant preferred an appeal against the decision of Sri J.N. Mallick, Munsif, being Appeal No. 9 of 1954 of the 2nd Additional Court of the Subordinate Judge, Howrah and the appeal was heard by Sri Sashi Bhusan Mondal, Sub-Judge. Sri Mondal affirmed the decision of the learned Munsif on 27-8-54. In reply to the argument on behalf of the defendant that the learned Munsif, Sri. Mallick did not com-ply with the orders of the Appellate Court, that is to say, the orders of remand given by Sri S. Sen Gupta, Sri Mondal observed as follows:

'But it appears on a reading of the judgment of the learned Munsif that he considered the case under Section 14(1) as he was asked to do by the court of appeal and accordingly he directed a deposit of arrears of rent by the tenant. But it appears on a reading of the remand order that my predecessor directed not only that the case should be considered in the light of the provisions of Section 14(1) of the Act but also the case should be decided in accordance with the law The learned Munsif not only considered the case Under Section 14(1) of the Act but also he relied upon the latest decision on this point by referring to the case as reported in : AIR1953Cal733 (FB) . . . . In view of the learned Munsif and in view of the provisions of law, as I understand it, it is perfectly clear that the order of the learned Munsif ejecting the defendant was perfectly justified...

11. Therefore a second appeal was preferred by the defendant to this Court, being S.A. No. 500 of 1955 against the decision or Sri Mondal and the said second Appeal was heard by Chatterjee, J. sitting singly.

12. Chatterjee J. was of opinion that the primary question for determination was the true meaning of the order of remand and its effect and his Lordship came to the following conclusion on this question:

'I have read the order carefully and I findthat the appellate court considered the question specifically whether the defendant was entitled to protection under Section 14(1) of the Act. The question whether the defendant is entitled to protection under Section 14(1) means whether he could be ejected if certain deposits were made in terms of Section 14(1) of the Act. The Subordinate Judge, therefore, decided that the tenant could not be ejected provided he deposited the amount as in Section 14(1) of the Act. The Subordinate Judge might have himself come to a finding as to what would be the amount of money, but he did not come to any finding. He left it to be calculated by the trial court, or, in other words, he determined the rights of the parties and directed the Trial Court to work it out. In that view of the matter I must hold that the order of remand, though stated to be an order, is a decree within the meaning of Section 2(2) of the Code of Civil Procedure. ...... and thewords 'in accordance with law' could not be construed in such a way as to make the substantive order infructuous . . .I, therefore, find that the words 'in accordance with law' simply meant working out the order in terms of Section 14(1) of the Act. . . . Hence the order of remandbeing in substance, a decree, was appealable as a decree.

13. We fully agree with the view expressed by Chatterjee J. as to the nature and effect of the remand order. Sri S. Sen Gupta by his remand order really meant that the suit in so far as it related to the eviction of the defendant was to be dismissed on the defendant's depositing the amount found to be due by the trial court under Section 14(3) of the Act. The learned Munsif. Sri Mallik was not justified in passing a decree for eviction in spite of the defendant's depositing the amount that he was asked to deposit under Section 14(1) of the Act. The learned Munsif was no doubt asked to decide the case in accordance with law; but in the name of deciding according to law he was not entitled to re-open the issue conclusively determined by the learned Subordinate Judge, the determination of the learned Subordinate Judge being that the claim for eviction was to be dismissed on the defendant's depositing the amount that might be found due by the learned Munsif under Section 14 (1) of the Act. The learned Munsif therefore acted without jurisdiction in granting the prayer for eviction. For the same reason the learned Subordinate Judge who heard the appeal from the learned Munsif's decree granting eviction acted without jurisdiction in affirming the decision of the learned Munsif as regards eviction.

14. Now the question is whether the plaintiff can challenge the validity of the order of remand passed by Sri S. Sen Gupta in second appeal before the High Court. In our opinion the remand order conclusively determined the rights of the parties on the question of eviction; therefore, it had the effect of a decree within the meaning of Clause (2) of Section 2 of the Code of Civil Procedure. The order of remand was therefore appealable as a decree but no appeal was preferred by the plaintiff. Therefore it became conclusive between the parties. Therefore, applying the principle laid down by the Privy Council in Hook G.H. v. Administrator General of Bengal,48 Ind App 187: (AIR 1921 PC 11) it must be held that By the general principles of res judicata the remand order closed one chapter or the litigation for all time to come and that the original court as well as any higher court including the High Court at any subsequent stage of the litigation must proceed on the basis that the order of remand was correct.

15. We arrive at the same result by applying Sub-section (2) of Section 105 of the Code of Civil Procedure which says that where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness. IN this case the order of remand was appealable as a decree. No appeal having been preferred the plaintiff is precluded from disputing its correctness even before the High Court.

16. It was argued on behalf of the defendant that even assuming that the order of remand was not appealable as a decree it was certainly appealable under Order 43(u) of the Code of Civil Procedure. It may be said that in a sense the trial court in the first instance disposed of the suit upon a preliminary point. The suit was decreed because the trial court was of opinion that the defendant was hit by the proviso to Section 14(3) of the Rent Control Act of 1950. The appellate court reversed the decree because in its opinion the proviso to Section 14(3) was not applicable to this Clause (sic), and thereafter remanded the case to the trial court. Therefore the order of remand appears to have been passed under Order 41, Rule 23. So the order of remand was appealable under Order 43 (u). On behalf of the plaintiff it was argued that the order of remand was passed not under p. 41, Rule 23 but under Section 151 of the Code of Civil Procedure and as such it was not appealable. It was next argued that as the order of remand was not appealable, the plaintiff was entitled to challenge its validity in second appeal before the High Court. As against this the learned Advocate for the defendant contended that even assuming that the order of remand was passed under Section 151 of the Code of Civil Procedure, in substance it was an order under Order 41, Rule 23 and as such appealable. He mainly relied upon Prosunna Chandra v. Boidya Nath, 31 Cal LJ 360: (AIR 1920 Cal 124 (2)) in support of his argument. Therein it has been laid down that when an order of remand is in form and substance an order under Order 41, Rule 23, it is appealable, although the court of appeal was not justified in remanding the case under the provisions of that rule. The same view was expressed in Baseemati Debi v. Tarit Basani Dassi, 31 Cal LJ 354: (AIR 1920 Cal. 569) cited by the defendant. Reference was also made to Bhairab Chandra v. Kali Kumar, AIR 1923 Cal. 606 wherein it has been laid down that where a case is remanded for retrial, not under Order 41, Rule 23 but under inherent powers of court, an appeal lies from the remand order not under Order 43, Rule 1(U) but under Section 96 read with Section 100, as an appeal from a decree. Another case cited on behalf of the defendant was that of Kayem Biswas v. Bahadur Khan : AIR1925Cal1258 . There it was urged on behalf of the appellant that inform and substance that order of remand, though it might have been irregular must be held to have been made under Order 41, Rule 23 and that, that being so, an appeal lay. This argument was accepted by their Lordships.

17. On behalf of the plaintiff certain cases were cited for the purpose of showing that an order of remand passed under Section 151 of the Code of Civil Procedure is not appealable. The first case cited was that of Mahendra v. Ramtaran, 23 Cal WN 1049: (AIR 1920 Cal. 124(1)) whereas it has been laid down that no appeal lies against an order passed by an appellate court remanding a case otherwise than under Order 41, Rule 23, Code of Civil Procedure. Next case cited was that of Jagathari v. Medini Mohan : AIR1927Cal642 . That case, in a way, supports the contention of the defendant. On a survey of the various decisions on this point including the case of 23 Cal. WN 1049: (AIR 1920 Cal 124 (1)), their Lordships concluded as follows:

'The law as it obtains at present appears to be that although the court ordering the remand may have had no jurisdiction under Rule 29 to pass the order under that rule, nevertheless, if the order of remand as made purports to be an order under Order 41, Rule 23 and appear to be in form and substance an order under that rule it is to be regarded as an order of remand passed under Rule 23, and, therefore, subject to appeal.'

Their Lordships pointed out that though the decision in the case of 31 Cal LJ 354: (AIR 1920 Cal. 569), was prior to the decision in the case of 23 Cal WN 1049 (also reported in 31 Cal LJ 357: AIR 1920 Cal 124 (1)) was not brought to the attention of the court in the latter case. Reference was also made on behalf of the plaintiff to the case of Banka Behari v. Birendra Nath : AIR1927Cal850 . There an appeal from an order of remand was treated as an application under Section 115, Code of Civil Procedure, as in the opinion of their Lordships, no appeal lay from the said order of remand. Their Lordships were definitely of opinion that the lower appellate court did not purport to act under Order 41, Rule 23. Graham J. who delivered a separate judgment observed as follows:

'It appears to me, however, that probably what the learned Subordinate Judge intended to do was to act under Rule 25, but instead of carrying out the procedure laid down in that rule he, through some oversight, adopted the procedure laid down in Rule 23. It amounts, therefore, to this that the court made an order which it had no jurisdiction under the Code to make.'

In the present case, there is no manner of doubt that the appellate court in remanding the case purported to act under Rule 23 of Order 41, Page J. who delivered the principal judgment, doubted the correctness of the view expressed in the cases relied by the defendant. His Lordship however took the view that an order of remand may be appealable if it is a decree. His Lordship observed as follows:

'Of course, if the order of remand, as made, is a decree within Section 2 of the Code, an appeal will lie from it, but the appeal will not lie fromsuch an order because the court purported to make the order under Rule 23, but because it provided elsewhere in the Code that from such a decree an appeal shall lie.'

In the instant case we have held that the order of remand having conclusively determined the rights of the parties as to eviction was a decree within the meaning of Section 2 of the Code. We have also held that there is no manner of doubt that the lower appellate court not only purported to act under Order 41, Rule 23 and that all the conditions requisite for exercising power under that provision were present. Therefore, Banka Behari's case : AIR1927Cal850 is of little assistance to the plaintiff.

18. The above discussion as to case law on the subject makes it abundantly clear that when the appellate court purports to act under Order 41, Rule 23 the order of remand is appealable even though it is passed irregularly. In the instant case the order of remand was appealable either as a decree or under Order 43 (1) (U) of the Code of Civil Procedure.

19. Our attention was drawn to the decision of the Supreme Court in the case of Satyadhyan v. Deorajin, : [1960]3SCR590 ; but in that case the order of remand could not be regarded as a decree, nor did it purport to be under Order 41 Rule 23 of the Code. There the case was remanded by the High Court to the trial court on an application under Section 115 of the Code of Civil Procedure. Then again, there the question involved was whether the order of remand terminated the proceedings upto the stage of passing the order. Das Gupta. J. observed as follows:

'In our opinion the order of remand was an interlocutory order which did not terminate the proceedings and so the correctness thereof can be challenged in an appeal from the final order.'

Moreover, it was pointed out by the Supreme Court that Section 105(2) of the Code of Civil Procedure can have no application to appeals to the Supreme Court as no appeal lies to the Supreme Court against an order of remand. Therefore Satyadhyan's case : [1960]3SCR590 has no bearing on the question before us.

20. In the result the appeal fails and the appeal is accordingly dismissed with costs. The decision of Chatterjee, J. is hereby affirmed including the direction for depositing all arrears of rent together with the default clause